Housing Law Updates - Coronavirus (COVID-19)

This page intends to support advisers who are giving housing advice in Scotland during the Coronavirus (COVID19) Outbreak.

This page will be updated regularly but advisers should keep in mind that the situation is changing quite quickly at times and so where there is any uncertainty it will be wise to check the position directly with any relevant organisations involved in your case.

This page was last updated on 6 August 2021.

This content applies to Scotland

General information

For the latest health information, please refer to NHS inform.​

For the latest information on the government response please refer to the Coronavirus information on the Scottish Government website.

Extension of Coronavirus Act approved

The Scottish parliament has approved further extension of the emergency Coronavirus Acts. The Coronavirus (Extension and Expiry) (Scotland) Act 2021 comes into force on 30 September 2021 and the effect will be that:

  • the extension to notice periods,

  • the pre-action requirements in the private rented sector, and

  • rights for people in student accommodation to end their tenancy early

will be in place until 31 March 2022.

Moving house and accessing services

Moving house

All home moves are permitted, provided they can be carried out safely. This includes students moving home and other home moves resulting in two households merging. See the Scottish Government guidance for more information.

Members of the public are allowed to leave their homes in order to move home and undertake activities in connection with the purchase, sale, letting or rental of a residential property including:

  • visiting estate or letting agents, developer sales offices or show homes

  • viewing a residential property to look for a property to buy or rent

  • preparing a residential property to move in

  • moving home or

  • visiting a residential property to undertake any activities required for the rental or sale of that property.

Private tenants might find it helpful to refer to the Scottish Government advice for private tenants.

Social sector tenants can check Scottish Government guidance for social landlords.

Moving home and people who are self isolating or have symptoms

The current guidance on moving home advises that people moving should be flexible, and be prepared to delay where people need to self isolate. All parties should prioritise agreeing amicable arrangements to change move dates for households with individuals in this group. This includes where someone in the chain of those involved in the proposed move is in this group, particularly where that person is being shielded from the virus.

Illegal eviction

Illegal eviction remains a criminal offence. Advisers should continue to follow the same steps and can advise on strategies to prevent unlawful eviction or have a client be able to re-enter their home as they would normally. See the section on Unlawful eviction.

Eviction - enforcement

Eviction ban

The Scottish Government brought in emergency regulations to temporarily prevent the enforcement of evictions during the Coronavirus COVID-19 outbreak.

  • the ban covered both social rented and private rented sector tenancies as well as mortgage repossessions

  • the ban applied in Level 3 and 4 areas

  • it was a ban on enforcement action - sheriff officers could not attend a property to serve a Charge for Removal or carry out an eviction or a mortgage repossession during period where the ban applies unless the eviction was granted due to criminal or antisocial behaviour

Scotland moved out of the levels system on 9 August 2021, so the ban is no longer in force anywhere in the country.

Eviction – private tenants

On 7th April the Scottish Government commenced the Coronavirus (Scotland) Act 2020.

The Scottish Government has extended some parts of this legislation, meaning that the following all remain in place until 31 March 2022.

Broadly, where notice was served after 7 April 2020:

  • all eviction grounds for PRT, assured and short assured tenancies are discretionary. Where a ground is discretionary, the tribunal may still grant an eviction order but only where it is reasonable to do so

  • this includes a requirement for reasonableness to be considered where short assured tenancies are being recovered under a section 33 notice

  • there will be an increase in the length of notice required for most eviction actions (ranging from 28 days to 6 months depending on tenure and grounds)

  • all actions for eviction due to rent arrears will require 6 months’ notice

  • short assured tenancies being ended using the section 33 procedure will also require 6 months’ notice

The details of how the Act affects possession procedures can be found on the page on Coronavirus (COVID-19) Eviction and security of tenure.

Help and advice for private tenants

The Scottish Government has issued a guide for private tenants in Scotland. The resource is a comprehensive guide to support and advice for those living in the private rented sector during the COVID-19 pandemic. It is a collaboration between Public Health Scotland, Citizens Advice Scotland, Shelter Scotland and Scottish Government.

Guidance and financial assistance for private landlords

The Scottish Government has issued guidance for private landlords and letting agents which provides details of financial assistance and has called for all landlords not to evict a tenant who is in financial difficulties as a result of the outbreak. The Scottish Government has also opened a scheme which will provide loans to landlords who meet the criteria. An application can be made directly via the link of the guidance.

Actions raised prior to 7 April 2020

The First Tier Tribunal reopened on 9 July 2020. Actions where notice was served prior to the 7th April 2020 will be covered by the old rules. See the relevant section for the clients tenure in the pages on Security of Tenure. In addition, advisers should be aware that eviction orders granted prior to the tribunal closure are able to be enforced by sheriff officers.

It may still also still be worth attempting to negotiate with the landlord on the basis of the current crisis and health advice, and potentially the lack of alternative housing options for your client. Where negotiation is not possible the client should be referred to a solicitor. See also the section on Eviction procedures to check whether there are any actions to delay or prevent the eviction.

Mortgage breaks for landlords

The UK Government asked the finance industry to include buy to let mortgages in their proposed mortgage holidays for mortgage holders affected by the Coronavirus. The deadline to apply for payment holidays was 31 March 2021, and all payment holidays must have ended by 31 July 2021. See the page on Mortgage payment advice - Coronavirus.

Eviction – social rented tenants

New legislation

On 7 April the Scottish Government commenced the Coronavirus (Scotland) Act 2020. The Scottish Government has extended some parts of this legislation, meaning that the following all remain in place until 31 March 2022.

Broadly the changes for social rented tenants can be summarised as follows. Where notice was served after 7 April 2020:

  • there will be an increase in the length of notice required for most eviction actions (ranging from 28 days to 6 months depending on tenure and grounds)

  • all actions for eviction due to rent arrears will require 6 months’ notice

The details of how the Act affects possession procedures can be found on the page on Coronavirus (COVID-19) Eviction and security of tenure.

Scottish government guidance

The Scottish Government has issued Guidance for social landlords which includes information about the implications of the new Act.

Actions raised prior to 7 April 2020

The new notice periods only apply to notices served before 7 April 2020. There are likely to be actions at sheriff court which have been postponed or sisted which are now being heard again as the courts are reopen. Check the Scottish Courts website for for details for each local sheriff court.

In this situation, advisers should in the first instance try and negotiate with the landlord. They may find it helpful to remind them of the Scottish Governments advice and the potential public health implications if eviction would result in a household becoming homeless at this time. If possible, advisers should seek a written undertaking to postpone any eviction action.

Where negotiation has been unsuccessful please seek advice from a solicitor. It may also be possible to recall the decree. See the section on After decree remedies for more information.

Student lets - right to give notice

In force from 27 May 2020, the Coronavirus (Scotland) (No.2) Act 2020 gives a temporary legal right for people living in student accommodation to end their tenancy early by giving notice. Student accommodation is defined as it is in the 2016 Act – tenancies excluded from being a private residential tenancy. Broadly this means halls of residence and purpose-built student accommodation.

For a notice to be valid it must:

  • be in writing, which includes electronic communications and

  • state the day on which the tenancy is to end (which is the day after the last day of the minimum notice period)

The minimum notice periods that apply are:

  • 7 days - where the tenancy was entered into before 27 May 2020 or

  • 28 days in any other case

The right to give 28 days notice to terminate a tenancy remains in place until 31 March 2022. The right to give 7 days notice will expire on 30 September 2021.

Full details can be found on the page on student accommodation.

Benefits and income

See the page Coronavirus (COVID-19) Benefits and Income for full  information on measures introduced and options for those whose benefits and income have been affected.

Tenant Hardship Loan Fund

The Scottish Government introduced a Tenant Hardship Loan Fund directed towards people who have had their finances impacted by the coronavirus (COVID-19) pandemic and do not have other means of support. Many tenants may be entitled to non-repayable help, for example Universal Credit or Discretionary Housing Payments, and where such help is available this is likely to be a better option. 

On 22 January 2021 the Scottish Government updated eligibility criteria so that tenants with previous arrears are no longer excluded from applying. However, the loan amount will still only cover arrears accrued before 1 January 2020 and the tenant must still pass the affordability check. Applicants who applied before this change, who may now meet the requirements will be contacted by the loan administrator and their claims can proceed. 

Loans are available for social and private tenants and the loan is interest free.

Criteria:

  • up to a maximum of nine months’ rent costs covering rent arrears and future rent,  

  • can cover arrears which have arisen since 1 January 2020 

  • The loan can include up to a maximum of three months of future rent payments as part of the nine-month total.

Loan repayments will be deferred for six months and repaid over 60 months. 

The Tenant Hardship Loan Fund offers will be subject to an affordability assessment to check whether the applicant has enough surplus income, after other costs, to make the loan payments. 

The application process for the loan highlights that there may be other more appropriate financial support options available to them and will signpost people to sources of further advice and support before making an application. 

More information can be found in Tenant's Hardship Loan - Information for advice providers.

Mortgage payment difficulties

See the page Coronavirus - Mortgage Payment Advice for more information.

There is additional information for mortgage borrowers on the FCA website.

Home energy

The government has launched an emergency package with energy suppliers to ensure customers don’t face any additional hardships in heating or lighting their home during the coronavirus outbreak. Customers with prepayment meters who are self-isolating or unable to leave their home can now speak to their supplier on the options. This may include:

  • someone being sent to top up the prepayment card or token

  • having funds added to meter credit

  • having a preloaded gas or electricity card sent in the post

Suppliers must take reasonable steps to avoid disconnecting an energy supply for debt during the COVID-19 period. It should always be a last resort and avoided wherever possible.

Suppliers must tell customers:

  • what customer service support is available, particularly if they are vulnerable

  • how customers will be supported if they can’t top up or could go off supply.

For more information see the Ofgem webpage: Coronavirus and your energy supply.

The contact numbers for the main energy suppliers are

BRITISH GAS 0333 202 9802

EDF 0333 200 5100

EON 0345 052 000

N POWER 0800 073 3000

SCOTTISH POWER 0800 027 0072

SSE 0345 026 2658

Homelessness

The statutory duties in relation to homelessness remain in force at this time.

Local authorities are likely to put in place measures in response to public health advice. For example, to take applications over the telephone where a client is able to do so.

In some local authority areas, there may be emergency accommodation arrangements for people where there may be no statutory duty or who are currently street homeless for other reasons, but who have not been accommodated. Whilst some of these may be provided by third sector organisations, advisers should contact their local authority in the first instance to inquire about any emergency provision.

Homelessness and 'Unsuitable Accommodation'

The Scottish Government brought forward their plan to increase the scope of the The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 to include all homeless households. However in practice this may be dependent upon supply due to the pandemic and the legislation makes exceptions for this. 

From 6 May 2020 the new legislation:

  • extends the scope of the legislation to include all homeless households.

  • makes changes to the ‘basic standards’ which must always be met

  • adds additional standards which must be met (only where the exceptions do not apply)

  • adds new exceptions

  • adds temporary exceptions due to the coronavirus pandemic.

The temporary exceptions due to the coronavirus pandemic expire on 30 September 2021. Full details of both the permanent and temporary changes can be found on the page Standard of Temporary Accommodation.

No recourse to public funds

COSLA has produced a framework to help local authorities to support people with no recourse to public funds (NRPF). The key points of this are:

  • local authorities have statutory Public Health duties to provide emergency accommodation to all people with NRPF who are roofless or rough sleeping during the pandemic in order to protect them from the virus and mitigate public health risks. This is in addition to continued duties to provide any support necessary to safeguard vulnerable people, including children in families with NRPF and adults with community care needs under devolved social care legislation

  • local authorities can provide financial support, food or other emergency assistance, so long as the source of funding is not a prohibited public fund (such as the Scottish Welfare Fund) and can work in partnership (e.g. with third sector partners) to ensure that support can be provided effectively. In circumstances where an individual is receiving assistance solely on public health grounds, this will be provided on a temporary basis, as part of an emergency response to the COVID-19 pandemic

  • any support provided and costs incurred should be clearly recorded and reviewed, in line with changes in public health advice and/or any relevant changes in UK immigration rules during this period

The framework COVID-19 Response Planning: Supporting Migrants with No Recourse to Public Funds can be found on the COSLA website.

Repairs, inspections and safety checks

There have been no changes made to the legislation relating to repairs for either the private or social rented sector. All statutory repairing duties continue to apply.

However, in both sectors the general rule is that repairs must be carried out within a ‘reasonable’ period of time. Advisers should ensure clients are aware that what is considered to be ‘reasonable’ in the current situation has not been tested and will in any case depend on the nature of the repair.

Gas safety

The Health and Safety Executive advise that 'Landlords should not suspend all gas safety checks at this time as it will unnecessarily put tenants at increased risk, particularly as people are spending most, and in some cases all, of their time at home. Each property should be considered on a case-by-case basis, completing safety checks where tenants permit access and gas engineers are available.' Where it is not possible to carry out a gas safety check, the landlord will need to evidence that they took reasonable steps to do so. There is detailed guidance for all UK landlords on the HSE website Gas Safety checks.

Practical steps

Advisers should continue to advocate for clients and collate evidence. In all cases it will be important to establish whether the landlord ‘will not’ carry out the repair or whether they ‘are unable’ to carry out the repair because of circumstances out with their control. However, it is possible to initiate proceedings to enforce repairs. It is important therefore to note all relevant information carefully.

Where an individual may be at risk if the repair is not carried out, both private and public sectors landlords can be reminded of their general duty of care in terms of the health and safety of any occupants and of their potential liability under s.3 Occupiers Liability (Scotland) Act 1960. If this does not resolve the matter, advisers should speak to a solicitor to discuss whether urgent enforcement action is possible.

In any cases where the repair puts anyone in the household at risk, but the landlord is unable or unwilling to make the property safe, advice should also be given on rights to make homeless application.

First Tier Tribunal Housing and Property Chamber

The First Tier Tribunal Housing and Property Chamber resumed business on 9 July 2020. Most actions can be carried out remotely via teleconferencing.  

Civil actions at sheriff court

Courts are now open and operating but procedures vary in each court building.

Advisers can check the procedures for their particular court on the Scottish Courts website. Information on the easing of court restrictions beyond level 0 has also been issued.

Useful organisations

Citizen's Advice Scotland

Citizen's Advice Scotland can provide advice on a great many topics including employment rights and money and debt advice. You may wish to signpost clients where the issue is not a housing matter. Bureaus may make arrangements for people to get advice or support via the telephone. Citizen's Advice Scotland have set up a specific page for the public in response to the outbreak. See the page Coronavirus - what it means for you for more information.

Covid Mutual Aid UK

A group of volunteers supporting local community groups organising mutual aid throughout the Covid-19 outbreak in the UK. They focus on providing resources and connecting people to their nearest local groups, willing volunteers and those in need. You can search for local groups via their website.

All Under One Roof

All Under One Roof provide advice for owners of all types of common property. They have set up a webpage: Coronavirus guidance for flat dwellers. The page includes guidance for cleaning of communal areas, difficulties paying factors fees, and how to manage meetings with other occupiers whilst maintaining isolation and social distancing rules.

Last updated: 6 August 2021